MANDATORY OR DIRECTORY PROCEDURE ?

A PRACTICAL SOLUTION IN BALBIR SINGH

Author(s): Srinivas S. Kaushik
Source: Journal of the Indian Law Institute, Vol. 37, No. 1 (January-March 1995), pp. 105-
108
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43951592
Accessed: 09-02-2019 10:25 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Indian Law Institute is collaborating with JSTOR to digitize, preserve and extend access to
Journal of the Indian Law Institute

This content downloaded from 103.59.198.110 on Sat, 09 Feb 2019 10:25:35 UTC
All use subject to https://about.jstor.org/terms
 MANDATORY OR DIRECTORY PROCEDURE ?
A PRACTICAL SOLUTION IN BALBIR SINGH

I Introduction

THE SUPREME Court through a landmark decision in State of Punjab v: B

Singh1 has resolved the controversial issue as to whether the procedure for arre
search and seizure under the Narcotic Drugs and Psychotropic Substances
1985 (NDPS Act) is directory or mandatory. Decision by the apex cour
essential especially in light of the conflicting decisions on this point by va
High Courts.

II Brief outline of NDPS Act

The NDPS Act was enacted in 1985 to make strigent provisions for the contr
and regulation of operations related to narcotic drugs and psychotropic s
stances. It punishes possession, manufacture and cultivation, etc., of certain dru
with minimum mandatory sentences of ten years extendable to twenty year
fines upto Rs. two lakhs. Chapter V, with which the court was really conce
deals with the procedure regarding entry, arrest, search and seizure.

Ill Law regarding procedure for arrest, search, seizure, etc.

A special procedure for arrest, search and seizure has been prescribed u
the NDPS Act. Under sections 41 and 42 only certain classes of magistrates
empowered officers2 are competent to issue warrants and conduct investig
for search, arrest and seizure respectively if they have 'reason to believe' t
person has committed an offence under the Act. An empowered officer
section 42 can search, seize and arrest without warrant or authorisation bet
sunset and sunrise if he has 'reason to believe' that it would not be possib
obtain warrant or authorisation without giving an opportunity for concealment
evidence or escape of an offender. In such cases he must record the grounds of
belief and send it to his immediate official superior.3 Section 50 requires
empowered officer to conduct the search before a gazetted officer or magi
if "such person so requires". It also empowers the gazetted officer or magis
to discharge such person if he finds no reasonable ground for search.
While section 51 states that the provisions of the Criminal Procedure C
(CrPC) shall be applicable as regards arrest, seizure and search as long as the
not inconsistent with NDPS, section 52 requires the arresting officer to inform

1. J.T. 1994 (2) S.C. 108.

2. These officers should be superior in rank to a peon, sepoy or constable of the departme
central excise, narcotics, customs, revenue, intelligence or any other department of the central g
ment and if he is a state government officer, he must be specifically empowered.
3. Proviso to S.42 (1).

This content downloaded from 103.59.198.110 on Sat, 09 Feb 2019 10:25:35 UTC
All use subject to https://about.jstor.org/terms
106 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 37 : 1

arrested person about all the grounds for such arrest. In ad

to section 57, the officer shall within forty-eight hou
particulars of arrest or seizure to his immediate officia

IV Area of conflict

The court had to decide the following issues :

(0 What is the extent of applicability of CrPC and the status of searc

conducted under it while investigating other offences which lead to
recovery of prohibited substances under NDPS Act.
(ii) Whether issue of warrants and conduct of investigation by authoritie
other than those authorised under sections 41 and 42 respectively woul
vitiate the trial and what is the interpretation of the term 'reason to
believe'.

(iii) Whether the requirement of informing a person of the option of being

searched before a gazetted officer or magistrate is mandatory or obliga-
tory.

(iv) Whether the provisions relating to recording of reasons, submission of

report to superior officers and informing the accused of the grounds of
arrests are mandatory or directory.

V Response of court

(1) Rule of interpretation

The court relied on its earlier judgment in Re Presidential Election u and
Govind Lai Chagganlal Patel v. The Agriculture Produce Market Committee 4 to
evolve the rule that to decide whether a particular rule or provision is mandatory
or directory, the primary consideration shall be the relation of that provision to
the general object intended to be secured by the legislation, i.e., the intention of
the legislature. It held that while NDPS Act was enacted to combat the menace
of drugs, prevention of harm to innocen t people as a result of the abuse of stringent
provisions by officers was also intended to be ensured. J

(2) Applicability of CrPC

Since sections 1006 and 1657 of CrPC are not inconsistent with the provisions
of the Act, tli e y were held to be applicable for effecting search, seizure and arrest

3 a. A.I.R. 1974 S.C. 1682.

4. A.I.R. 1976 S.C. 263.
5. See. supra note 1 at 121-2.
6. S. 100 (4) requires the presence of two or more independent and respectable inhabitants o
locality when search is conducted.
7. S. 165 deals with search without warrants and delegation of the power to search to a subord
officer. In both cases, the reasons have to be in writing.

This content downloaded from 103.59.198.110 on Sat, 09 Feb 2019 10:25:35 UTC
All use subject to https://about.jstor.org/terms
 1995] MANDATORY OR DIRECTORY PROCEDURE 107

under the Act also. The above stance immediately r

compliance of joining public witnesses or the requi
writing under sections 100 and 165 respectively wo
The court after referring to many decisions9 h
provisions would amount to only an irregularity an
whether any prejudice has been caused to the
non-compliance be fatal to the prosecution.10 T
is welcome, especially keeping in mind the dif
agencies in getting public witnesses during sear
of each case would also ensure that the accused'
process of strengthening the prosecution.

(3) Legality of recovery of drugs during inves

The court has held that when a police officer

CrPC (including search) comes across in the pers
drug, compliance with section 50 does not arise
purpose of recovering a prohibited drug. For th
must have been for some other offence.11 The
point. From that point onwards, if he is an empow
he should continue the investigation in accordan
should inform an empowered officer to carry o

(4) Competency of authorities and 'reason to

As mentioned above only certain magistrates a
authorised to issue warrants and conduct searches under sections 41 and 42
respectively. The court was of the opinion that the designation of superior office
was an important safeguard in view of the deterrent sentences contemplated fcn
therefore any action by an incompetent magistrate or officer would per s
illegal and vitiate the trial.
'Reason to believe' does not mean subjective satisfaction of the offi
concerned. It would only mean a bona fide exercise of the authority conferre

(5) Condition precedent to conduct of search

Section 50 requires that a persoli shall be searched before a magistrate
gazetted officer 'if the person to be searched so requires' . There was disagreemen
among the various High Courts as to whether this imposed a mandatory obligatio

8. The Delhi High Court in S urta ri alias Chaman v. Srate, (1988) 2 Cr.J.R. (Del.) 522, held that
joining of public witnesses is fatal but a contrary view was taken by the Bombay High Court in A
Sattar v. State , 1989 Cri.L.J. 430.
9. State of Maharashtra v. Na tua ria I Dam odor da s Soni , A.I.R. 1980 S.C. 593, Bai Radka v. State
of Gujarat, (1969) 2 S.C.R. 799 and Sunder Singh v. State of U.P. , A.I.R. 1956 S.C. 411.
10. See, supra note 1 at 117.
11. For e.g., a police officer while searching a person for recovery of a stolen article comes across
narcotic drugs.
12. See also. Pratap Singh v. Director of Enforcement. Foreign Exchange Regulation. A.I.R. 1985
S.C. 989.

This content downloaded from 103.59.198.110 on Sat, 09 Feb 2019 10:25:35 UTC
All use subject to https://about.jstor.org/terms
108 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 37 : 1

on the empowered officer to inform the person of th

Court relied on the famous US decision of Miranda v.
mandatory obligation in fact exists and failure to inform
the trial. The court has kept in mind the importance o
the individuals and rightly held this provision to be m

(6) Requirement of recording of reasons, informing g

The requirement of recording, (/) reasons for sear

sunset and sunrise, and (n) any prior information, have be
Section 52 which requires the arresting officer to inf
grounds of arrest and section 57 providing for a detaile
be not per se mandatory but non-compliance will have
It is respectfully submitted that section 52 should have
framed to safeguard the rights of an accused under ar
tion.

VI Conclusion

The problem of balancing the protection of individual liberty on the o

and needs of law enforcement agencies on the other is a perennial p
statehood.15 The Supreme Court has to a large extent tried to achieve
balance by making only certain important safeguards mandatory. A
which might ensure personal responsibility of the officers acting under N
would be effective implementation of section 58 which provides for p
for vexatious entry, search, seizure or arrest.

Srinivas S. Kaushik*

13. The Himachal Pradesh High Court in State ofH.P. v. Sudarshan Kumar , 1989 Cri. L.J. 1412, ha
held this provision to be mandatory but the Bombay High Court in Wilfred Joseph Daw ood Lama v.
State of Maharashtra , 1990 Ciri L.J. 1034 was of the opinion that this obligation arises only after th
person himself requests.
14. 384 U.S. 436 (1966).
15. Lewis Meyers, Shall we Amend the 5th Amendment 228.
*111 Yr. B.A., LL.B.(Hons.)t National Law School of India University, Bangalore.

This content downloaded from 103.59.198.110 on Sat, 09 Feb 2019 10:25:35 UTC
All use subject to https://about.jstor.org/terms